Myth Busters

General

MYTH: We have to go to Court to resolve our matters.

FACT: Court is an option, however there are a number of alternatives to Court.

After separation, the best outcome is an agreement reached by both parties jointly. This agreement can be formed over a coffee at a local Cafe, at the kitchen table, or by way of written correspondence between the two parties. This is the best form of agreement as it provides you and your former partner or spouse with complete control over the outcome.

The two of you have worked hard to accumulate your assets and the two of you know your children better than anyone else. There is no better alternative than the two of you deciding their future. However, be sure to engage a Solicitor so that your agreement is properly formalised.

MYTH: Separation does not occur until someone moves out of the home.

FACT: Separation will occur when you or your former partner or spouse intends to separate and communicates that intention, either verbally or in writing, to the other party, or acts on that intention. An example of acting on that intention may be moving out of the home, however that is not required to establish separation.

Many couples, for various reasons, such as financial reasons or to maintain consistency for their children, decide to continue living separately but under the same roof for some time after separation.

MYTH: I have to prove that separation was someone's "fault" in order to obtain a divorce.

FACT: Neither you or your former spouse have to prove that the other person was at ‘fault’ to obtain a Divorce. A Divorce is merely a procedural process that simply changes your marital status from ‘married’ to ‘divorced.’ The only things you need to establish to obtain a divorce are:

That you have been separated for over 12 months; and
That either of you are an Australian citizen or ordinarily reside within Australia; and
Your marriage has broken down irretrievably; and
If there are children under the age of 18 years, the Court will also need to be satisfied that proper arrangements are in place for their care.

Parenting

MYTH: I have been told that when my child turns 12, they can decide where they would like to live.

FACT: There is no specific age. In determining whether to give consideration to the views of a child or children, the Court considers a number of factors, including whether they are mature enough to properly understand their views, and whether such views appear to be independent. Everyone’s circumstances are different, and all children are unique. The most important factor in relation to determining parenting arrangements following separation is what is best for the children.

MYTH: If I am not the biological parent of a child, I cannot apply to have care of, or time with, that child.

FACT: A person can make an Application for parenting Orders for a child if that person is concerned for the care, welfare or development of that child. When making such Application, the Court will consider whether or not it is in the best interests of the child to be cared for, or spend time with, a non-biological parent. In determining this, the Court considers a host of different factors. Every situation is unique. It is important that proper legal advice is obtained; specific to the individual circumstances.

Property

MYTH: My former partner and I have reached agreement to divide our property, so we don't need a lawyer.

FACT: If you and your former partner are able to reach an agreement between yourselves as to “who keeps what”, that is wonderful. However, it is crucial that one or both of you do consult with a Lawyer, not to alter the agreement, however to ensure your agreement can be properly documented. This will provide finality and certainty and enable both parties to move forward with their lives independently. It will also ensure that your assets are properly protected for the future.

MYTH: I have to divorce before I can obtain a property settlement.

FACT: The term “property settlement” essentially means “who keeps what” following separation, in relation to your assets and liabilities. Many believe that you have to be divorced, or you must wait a certain period of time, before you can obtain a property settlement. That is not the case.

You can finalise your property settlement immediately following separation. There is no period of time you must wait before you are able to finalise your property matters. The best way to finalise your matters is by way of an agreement, as you and your former partner or spouse can then control the outcome.

However, there are periods within which you must finalise your property matters (also known as a limitation period). Every situation is different. It is important that proper legal advice is obtained; specific to the individual and their circumstances.

MYTH: I am not entitled to any of my partner's superannuation as I did not contribute to the fund.

FACT: Due to changes made years ago to family law legislation, superannuation is considered an asset, rather than a future financial resource. Therefore, it is included when calculating the total assets of a marriage or de facto relationship. It depends on the individuals’ particular circumstances, but sometimes, upon the division of assets and liabilities of a relationship, one person may receive a portion of the other’s superannuation.

MYTH: I have been told that once a married or de facto couple separate, their assets are divided equally.

FACT: There is no rule or presumption that parties have to divide their assets equally upon separation. A number of factors are considered to determine “who keeps what”, including but not limited to:

- The length of the relationship;
- The financial contributions of either party;
- The non-financial contributions of either party, including as homemaker and/or primary care of the children;
- The future earnings of the parties;
- Who will have primary care of the children moving forward; and
- Any health issues of either party, or the children.

The same factors are considered, regardless of whether the relationship was a de facto relationship, or a marriage. Every circumstance is unique. Obtain independent legal advice at an early stage.

FACT: There is no requirement that you must stay in the family home in order to maintain a financial interest in the property. One or both persons of the relationship may consider it best that one person move out of the family home, to avoid potential or further conflict. Leaving the family home does not mean that a person is giving up any right or interest that they have in the property.

It should also be noted that a person may have a right or interest in property, regardless of whether their name is on the property’s title. It’s important that proper legal advice is obtained; specific to individual circumstances.

MYTH: If too much time passes after separation, my former partner cannot make a claim against my property or superannuation.

FACT: There are time limits that apply in formalising your property settlement after separation. A property settlement is the process of determining “who keeps what” after separation. The time limit for married couples is 12 months from the date of their Divorce. For de facto couples, the time limit expires 2 years after separation. It is crucial that a property settlement is completed within the applicable time limit. If it is not, it is a difficult course to seek a property settlement outside of the time frame.

However, it is not impossible and there is a risk that the other person may be allowed by the Court to seek a property settlement, despite the time limit having expired. Therefore, it is crucial that following separation, former married or de facto couples formalise their property settlement properly, and within the time limit.

MYTH: I have accumulated much more superannuation and saved much more money following separation. My former partner has no entitlement to that.

In determining “who keeps what” following separation, the first step the Court considers is what assets are within the property pool. A value is to then be attributed to those assets. The relevant value is the real market value at the date of the negotiations, agreement or Order. All assets, even if they were acquired after separation, are included. Therefore, it is crucial that you formalise your property matters shortly after separation, to protect any assets you may later acquire.

Once you have formalised your agreement, that prevents the other party making a claim against your assets in the future, other than in exceptional circumstances (for example, if there was fraud in relation to your initial agreement). Obtain independent legal advice at an early stage; specific to your circumstances.

Child Support

MYTH: The other parent and I have an agreement regarding Child Support, but I have to pay the assessed amount anyway.

FACT: If you are able to reach an agreement with your former partner as to financial support for your child or children, that is wonderful. You may then formalise that agreement by way of a Binding Child Support Agreement. Such agreement will then determine the amount of child support payable. The agreement can provide for various different arrangements, suitable to your individual circumstances. For example, the agreement may state one parent will provide:

- Financial support for the child or children by way of regular payments; or
- A lump sum payment, or
- Payment of school or other fees for the child or children instead of regular payments, such as school and/or extra-curricular costs.

There are a number of specific requirements that must be met for the agreement to be binding. You will need to consult with a Solicitor.

MYTH: Once I have a Child Support Assessment, I cannot ask for it to be reconsidered, even if some of the information is incorrect.

FACT: You are able to object to a decision made in relation to the payment of child support. There a number of processes with the first being an application to the Registrar of the Child Support Agency. They can determine whether there should be a variation to the assessment. For example, the rate of child support payable if it was based on the incorrect taxable income amount.

There are a number of matters the Registrar must consider before making a decision, and there are strict time limits within which an application must be made. If you are not happy with the Registrar’s decision there are other options available. These sorts of matters can be difficult and every circumstance is unique. Obtain independent legal advice at an early stage.

MYTH: We have separated and the children live with me. I will now automatically receive Child Support.

FACT: You will not automatically receive Child Support payments following separation. You will need to contact the Department of Human Services (Child Support) on 131 272 and ask for your former partner or spouse to be assessed for Child Support. Often a good starting point in determining what you may be entitled to receive, or obligated to pay in terms of Child Support is to use the online estimator.